NOWSHAD A v. GOVERNING BODY, TKM COLLEGE OF ENGINEERING, KOLLAM and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944** ## **WP(C) NO. 11445 OF 2018** ## **PETITIONER:** **NOWSHAD A, (FORMERLY ASSISTANT PROFESSOR, DEPARTMENT OF ELECTRICAL AND ELECTRONICS ENGINEERING, TKM COLLEGE OF ENGINEERING, KOLLAM), RESIDING AT SIRAJ MANZIL, PALLIPPATUMURI, THRIKKUNNAPUZHA PO, ALAPPUZHA-690515.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.K.N.REMYA SMT.N.SANTHA SRI.V.VARGHESE** ## **RESPONDENTS:** - **1 GOVERNING BODY, TKM COLLEGE OF ENGINEERING, KOLLAM, PIN-691005, REPRESENTED BY ITS CHAIRMAN.** - **2 THE CHAIRMAN, GOVERNING BODY, TKM COLLEGE OF ENGINEERING, KOLLAM, PIN-691005.** - **3 A.P.J ABDUL KALAM TECHNOLOGICAL UNIVERSITY, CET CAMPUS, THIRUVANANTHAPURAM, PIN-695016, REPRESENTED BY ITS REGISTRAR.** - **4 UNIVERSITY OF KERALA, PALAYAM, THIRUVANANTHAPURAM, PIN-695 034, REPRESENTED BY ITS REGISTRAR.** - **5 DIRECTOR OF TECHNICAL EDUCATION, PADMAVILASAM STREET, FORT PO, THIRUVANANTHAPURAM, PIN-695023.** **BY ADVS.SRI.GEORGE POONTHOTTAM (SR.), SMT.NISHA GEORGE SRI.ELVIN PETER, SC, APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY,** **SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA SMT.PARVATHY K., GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 11445 OF 2018** **-2-** ## **JUDGMENT** The petitioner impugns Ext.P1 order issued by the 2nd respondent – Chairman of TKM College of Engineering, Kollam, removing him from its services on the ground of certain misconduct, including sexual harassment. 2. The petitioner says that he was working as an Assistant Professor in the College, when an allegation was made against him by a Teacher, through Ext.P2, that he had talked to her with sexual innuendos and in an inappropriate manner, thus bringing it within the ambit of Section 2(n) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as ‘Act for short). He says that, based on this complaint, an Internal Complaint Committee (ICC) was constituted and an enquiry conducted, which concluded him guilty. He **WP(C) NO. 11445 OF 2018** **-3-** says that, thereafter, an enquiry was proposed by the Manager of the College but stopped on the ground that this Court had, in the judgment in **Vijayakumar C.P. (Dr) v. Central University of** **Kerala and Others** [2020 (2) KLT SN 10] held that no enquiry is required after the ICC finds a person guilty; but conceded that, in spite of this, the enquiry was subsequently resumed, in which he participated adducing valid evidence to establish that every charge against him was untenable. 3. The petitioner says that based on the evidence on record, the Enquiry Officer correctly found that charges 1 and 2 are not proved against him, while charge No.3 was only partly proved to the extent that he had ‘ _misbehaved and was rude to the complainant in his conduct and conversation in the morning on 28.11.2015 that too in the presence of her colleagues and other members of the_ **WP(C) NO. 11445 OF 2018** **-4-** _faculty_ ’ (sic). He says that even assuming this was true, a punishment as harsh as termination from service could not have been imposed against him, but that it was so done based on extraneous considerations, particularly that there were earlier enquiries against him. He, therefore, prays that Ext.P1 be set aside, because he has no other alternative statutory remedy against it, which is manifest from the fact that when he approached the University Appellate Tribunal, an objection was raised by the College that such an appeal is not maintainable, thus forcing him to withdraw the same and to approach this Court. 4. I have heard Sri.Peter Jose Christo – learned counsel for the petitioner; Sri.Navaneeth Krishnan, representing the learned Standing Counsel for the College; Sri.Thomas Abraham – learned Standing Counsel, for the 4[th] respondent – University of Kerala and Smt.Parvathy K. - learned ## **WP(C) NO. 11445 OF 2018** **-5-** Government Pleader for the official respondent. 5. When I began to dictate this judgment, I must certainly record that this Court is fully aware of the limitations in interfering with disciplinary action. Normally, this Court does not evaluate the merits of the decision taken, but only as to whether the decision making process, as stipulated by the applicable Statutes and Regulations, has been fully complied with. 6. The facts involved are not much in dispute. The petitioner is alleged to have spoken with sexual intent or in an inappropriate manner to a lady Professor. On such basis and on her complaint, namely Ext.P2, he was issued with Ext.P4 Memo of Charges, which thereafter led to an enquiry, culminating in Ext.P10 Enquiry Report. Pertinently, in Ext.P10, out of the four charges mentioned in Ext.P4, only one was found to be partly proved, namely number 3 therein, to the ## **WP(C) NO. 11445 OF 2018** **-6-** extent as recorded above - that the petitioner had misbehaved and spoken rudely to the teacher in question. 7. Of course, when the ICC had earlier looked into the allegations, they had found in favour of the complainant and against the petitioner, but this would be of no consequence because, going by the judgment of the Hon'ble Supreme Court in _**Vijayakumaran C.P.(Dr.) v. Central University of**_ _**Kerala and Others**_ [2020 (1) KHC 982], an enquiry will require to be conducted before the delinquent is imposed with a punishment. In fact, this has been done, ending in Ext.P10, which, as I have said above, finds only one charge to have been partly proved against the petitioner. 8. Therefore, the only germane question before this Court is whether the allegations proved against the petitioner would warrant the imposition of a drastic penalty, as has been ## **WP(C) NO. 11445 OF 2018** ## **-7-** proposed through Ext.P1. 9. When one examines Ext.P1, the Disciplinary Authority, who is the Chairman of the Governing Body of the College, has, in paragraph 11 thereof, recorded that “ _On earlier occasions nine charges were framed against him (petitioner) and on enquiry three charges were proved fully and three_ _charges were partly proved._ ” (sic). It is clearly swayed by this aspect, that the Disciplinary Authority appears to have imposed the punishment of removal of the petitioner from service; but it is the Fundamental Principle of Law that a delinquent cannot be imposed with a punishment, except for the reasons which have been proven in the enquiry in question. Since Ext.P10 order finds that the petitioner is guilty of only one charge and, that too partly, namely to the effect that he misbehaved and acted rude towards the complainant (NW1), I am certain that the Disciplinary ## **WP(C) NO. 11445 OF 2018** **-8-** Authority must reconsider whether the highest punishment could be imposed against him on that ground alone. Obviously, the Principles of reasonableness and proportionality will have to be kept in mind by the Authority, while the afore exercise is completed. Resultantly and for the reasons above, I order this writ petition and quash Ext.P1; with a resultant direction to the Disciplinary Authority, which is stated to be the Chairman of the Governing Body of the College, to reconsider the punishment imposed upon the petitioner, after affording him an opportunity of being heard; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Needless to say, while the afore exercise is completed, the 2[nd] respondent will implicitly abide ## **WP(C) NO. 11445 OF 2018** **-9-** by the declarations of law by the Hon'ble Supreme Court in _**Vijayakumaran C.P.(Dr.)**_ (supra) and also advert to my observations as above. **Sd/DEVAN RAMACHANDRAN JUDGE** RR/akv ## **WP(C) NO. 11445 OF 2018** **-10-** ## **APPENDIX OF WP(C) 11445/2018** ## **PETITIONER EXHIBITS** |EXHIBIT P1|TRUE COPY OF THE ORDER| |---|---| ||NO.TKMCE/P1/1/127/2015 DATED 30.3.2017| ||OF THE CHAIRMAN, GOVERNING BODY OF THE| ||COLLEGE.| |EXHIBIT P2|TRUE COPY OF THE COMPLAINT DATED| ||07.12.2015 FILED BY DR.C USHA DEVI| ||AMMA, PROFESSOR, DEPARTMENT OF| ||ELECTRICAL AND ELECTRONICS ENGINEERING.| |EXHIBIT P3|TRUE COPY OF THE REPORT OF THE INTERNAL| ||COMPLAINTS COMMITTEE(ICC)| |EXHIBIT P4|TRUE COPY OF THE MEMO OF CHARGES DATED| ||09.03.2016 ISSUED BY THE MANAGER TO THE| ||PETITIONER.| |EXHIBIT P5|TRUE COPY OF THE ORDER| ||NO.TKMCE/P1/1/127/2015 DATED| ||09.03.2016.| |EXHIBIT P6|TRUE COPY OF THE EXPLANATION DATED| ||17.03.2016 FILED BY THE PETITIONER| ||EXT.P4| |EXHIBIT P7|TRUE COPY OF THE REPRESENTATION DATED| ||17.03.2016 SUBMITTED BY THE PETITIONER.| |EXHIBIT P8|TRUE COPY OF THE SHOW CAUSE NOTICE| ||NO.TKMCE/P1/1/2015 DATED 09.07.2016.| |EXHIBIT P9|TRUE COPY OF THE OBJECTION DATED| ||18.07.2016 FILED BY THE PETITIONER TO| ||EXT.P8| |EXHIBIT P10|TRUE COPY OF THE ENQUIRY REPORT DATED| ||25.01.2017.| ## **WP(C) NO. 11445 OF 2018** **-11-** - EXHIBIT P11 TRUE COPY OF THE LETTER NO.TKMCE/P1/127/2015 DTD.02.02.2017 OF THE 2ND RESPONDENT. - EXHIBIT P12 TRUE COPY OF THE WRITTEN SUBMISSION DATED 13.02.2017 OF THE PETITIONER. - EXHIBIT P13 TRUE COPY OF THE SHOW CAUSE NOTICE NO.TKMCE/P1/1/127/2015 DATED 17.02.2017 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P14 TRUE COPY OF THE EXPLANATION DATED 19.03.2017 FILED BY THE PETITIONER, TO EXT.P13 SHOW CAUSE NOTICE. - EXHIBIT P15 TRUE COPY OF THE APPEAL NO.1/2017 FILED BY THE PETITIONER BEFORE THE KERALA UNIVERSITY APPELLATE TRIBUNAL. - EXHIBIT P16 TRUE COPY OF PRELIMINARY OBJECTION DATED 04.11.2017 FILED BY THE 2ND RESPONDENT TO EXT.P15. - EXHIBIT P17 TRUE COPY OF THE ORDER DATED 17.03.2018 IN I.A NO.2/2018 IN UNIVERSITY APPEAL NO.1/2017 OF THE KERALA UNIVERSITY APPELLATE TRIBUNAL. - EXHIBIT P18 TRUE COPY OF THE JUDGMENT DATED 17.03.2018 IN UNIVERSITY APPEAL NO.1/2017. **RESPONDENT'S/S EXHIBITS : NIL.** ## **//TRUE COPY// P.A. TO JUDGE**